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Docket Number

Record No. 2522.

Attorney(S)

S. R. Price and W. E. Henson, for the plaintiff in error. Abram P. Staples, Attorney-General, and Carrington Thompson, Special Assistant, for the Commonwealth.

Judges

HOLT, J., delivered the opinion of the court.

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Smart Summary

Delbert Foster v. Commonwealth of Virginia — Supreme Court of Virginia (Jan. 19, 1942)

Factual and Procedural Background

The defendant, Delbert Foster, was arrested on a warrant charging him with keeping a house of ill fame. He was convicted by a trial justice, fined $200 and sentenced to ninety days in jail. On appeal to the Hustings Court of Roanoke, a jury found him guilty and fixed punishment at a $100 fine and nine months' jail; the trial court approved that verdict. The case came before the Supreme Court of Virginia on a writ of error. The premises involved was the upper flat of a building in Roanoke apparently leased by Margaret Bono and used for prostitution. The defendant and his wife, Mabel, had lived in West Virginia; the wife came to Roanoke about four weeks before the raid and worked at the premises up to the raid on February 16, 1941. The husband followed her about three weeks later, lived in the premises until his arrest during the raid, and said his purpose in coming was to persuade his wife to return with him to West Virginia. In his room officers found a drawer packed with freshly laundered shirts and the wardrobe of a man appearing permanently located. His room adjoined his wife's and there was a communicating door bolted and locked on his side. The Supreme Court considered whether the evidence was sufficient to support the conviction.

Legal Issues Presented

Whether the evidence presented at trial was sufficient to support the defendant's conviction for keeping a house of ill fame.
Whether it mattered for punishment whether the defendant was a principal, an accessory, or an aider and abettor in the misdemeanor charged.
What legal standards govern conviction as an accessory, aider and abettor, or principal in the second degree, and whether those standards were met by the evidence (including circumstantial evidence).

Arguments of the Parties

Appellant's Arguments

The defendant contended that he came to Roanoke merely to persuade his wife to return with him to West Virginia (i.e., that his presence was temporary and not indicative of participation in or maintenance of the house of ill fame).

Commonwealth's Arguments

The Commonwealth presented evidence that the premises was used for prostitution, that the defendant's wife was actively engaged there at the time of the raid, that the defendant had lived at the premises until his arrest, and that in his room were freshly laundered shirts and the wardrobe of a man located there—circumstances from which the Commonwealth argued guilt could be inferred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hitt v. Commonwealth, 131 Va. 752, 109 S.E. 597	That in a misdemeanor the punishment is the same whether one is a principal, accessory, or aider or abettor; definition of accessory.	Used to justify that it is immaterial for punishment whether defendant was principal, accessory, or aider/abettor and to quote a definition of accessory (one not present but concerned before or after as contriver, instigator, adviser, receiver or protector).
James v. Commonwealth, 178 Va. 28, 16 S.E.2d 297	Quotes Brown v. Commonwealth on definition of principal in the second degree and liability of those present who encourage the act.	Quoted by the court to explain principles on principals in the second degree and that those who encourage or countenance a trespass are treated as aiders and abettors.
Brown v. Commonwealth, 130 Va. 733, 107 S.E. 809, 16 A.L.R. 1039	Defines principal in the second degree; states that those present encouraging by words, gestures, looks, or signs are in law assumed to be aiders and abettors.	Relied upon for the definition of a principal in the second degree and the rule that presence plus encouragement may make one liable as a principal.
Kemp's Case, 80 Va. 443, 450	Authority for the proposition that mere presence is not enough to render one guilty as an aider or abettor.	Cited within discussion (via Brown/Shiflett) to state the limitation that mere presence, without something showing procurement, incitement, or encouragement, is insufficient for conviction as aider/abettor.
Shiflett v. Commonwealth, 151 Va. 556, 145 S.E. 336	That status as aider/abettor may be established by circumstantial evidence as well as direct evidence; reiterates rule that mere presence alone is insufficient.	Applied to support the proposition that the defendant's status could be established by circumstantial evidence and to justify the jury's inferences from the facts in this case.
Triplett v. Commonwealth, 141 Va. 577, 127 S.E. 486	Rule that to constitute one an aider and abettor he must be guilty of some overt act or share the criminal intent of the principal.	Used to state the requirement that an aider and abettor must commit an overt act or share criminal intent; court considered whether evidence met that standard.
1 R.C.L. 141	Statement that presence without disapproval is evidence which, with other circumstances, permits the jury to infer assent and aiding and abetting.	Cited to support the proposition that passive presence combined with other circumstances may justify a jury inference of aiding and abetting.

Court's Reasoning and Analysis

The court first recited the essential facts: the premises was used for prostitution; the wife had been an active inmate; the husband followed her to Roanoke, lived there until the raid, and had in his room freshly laundered shirts and a full wardrobe indicating permanence. The room adjoined his wife's and a communicating door was bolted on his side.

The court explained legal definitions: an accessory is one not present but concerned before or after as contriver, instigator, adviser, receiver or protector; an aider or abettor is one present actively or constructively (e.g., a watcher). A principal in the second degree is one present aiding and abetting or keeping guard. The court emphasized that in a misdemeanor the punishment is the same whether one is a principal, accessory, or aider and abettor.

The court applied authorities (including Hitt, Brown, Shiflett, Triplett, and others) to outline these principles and to state evidentiary rules: mere presence alone is insufficient to convict as an aider or abettor, but whether one aided or abetted may be inferred from circumstances as well as direct evidence; to be an aider/abettor one must commit some overt act or share the criminal intent. The court cited the rule that proof of presence without disapproval, in connection with other facts, permits a jury to infer assent and aiding/abetting.

Turning to the facts, the court reasoned that the defendant's manner of living at the premises (the packed drawer of freshly laundered shirts, typical wardrobe of a permanently located man, bolted communicating door on his side, continued residence while his wife worked there) were circumstances from which a jury could infer that his stay was not temporary, that he had an interest in or participated in the maintenance of the house, or that he tacitly agreed to its character in return for accommodations. The court noted the continuing nature of the offense and cited Code, section 4548, as to maintenance being a continuing offense.

The court further observed that defendant did not testify and that no evidence was offered on his behalf. The Commonwealth's case could be established by direct evidence and by known and proven conditions; jurors may rely on ordinary knowledge of men and affairs when drawing inferences. Considering all of this, the court concluded that reasonable jurors could find the defendant guilty whether as principal, accessory, or aider and abettor.

Holding and Implications

AFFIRMED

Holding: The Supreme Court of Virginia affirmed the judgment of the Hustings Court of Roanoke, upholding the jury's conviction of Delbert Foster for keeping a house of ill fame and the punishment imposed.

Implications: The direct consequence is that the defendant's conviction and sentence were upheld. The opinion applies established definitions and evidentiary principles concerning principals, accessories, and aiders and abettors and confirms that circumstantial evidence and inferences from known conditions may sustain a conviction; the court did not announce any novel legal rule beyond applying existing authorities to the facts of this case.

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DELBERT FOSTER v. COMMONWEALTH OF VIRGINIA.

1. ACCOMPLICES AND ACCESSORIES — Punishment — Accessory and Aider or Abettor Punishable as Principal for Misdemeanor. — In a prosecution for a misdemeanor it is a matter of no importance whether accused was a principal, an accessory, or an aides or abettor, since the punishment in each instance is the same.

2. ACCOMPLICES AND ACCESSORIES — Definitions — Definition of Accessory. — An accessory is one not present at the commission of the offense, but who is in some way concerned therein, either before or after, as contriver, instigator or adviser, or as a receiver or protector of the perpetrator.

3. ACCOMPLICES AND ACCESSORIES — Definitions — Aider or Abettor. — An aider or abettor is one who is present actively or constructively.

4. ACCOMPLICES AND ACCESSORIES — Definitions — Principal in Second Degree Defined. — A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.

5. ACCOMPLICES AND ACCESSORIES — Definitions — Aider and Abettor — Liable as Principal. — Every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means, countenances or approves the same is, in law, assumed to be an aides and abettor, and is liable as principal.

6. ACCOMPLICES AND ACCESSORIES — Aider and Abettor — Mere Presence Insufficient. — Mere presence when a crime is committed is not sufficient to render one guilty as aider or abettor. There must be something to show that the person present and so charged, in some way procured, or incited, or encouraged, the act done by the actual perpetrator.

7. ACCOMPLICES AND ACCESSORIES — Evidence — Whether One Aids and Abets May Be Determined by Circumstances. — Whether a person does in fact aid or abet another in the commission of the crime is a question which may be determined by circumstances as well as direct evidence.

8. ACCOMPLICES AND ACCESSORIES — Aider and Abettor — Necessity for Overt Act or Share in Criminal Intent. — To constitute one an aider and abettor, he must be guilty of some overt act, or he must share the criminal intent of the principal or party who commits the crime.

9. ACCOMPLICES AND ACCESSORIES — Evidence — Jury May Infer Assent from Presence without Disapproval. — Notwithstanding the rules as to the nonliability of a passive spectator, proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.

10. CRIMINAL LAW — Burden of Proof — How Commonwealth's Case May Be Established. — In a criminal prosecution, the Commonwealth must make out its case, but that case may be established both by direct evidence and by known and proven conditions.

11. DISORDERLY HOUSES — Keeping Houses of Ill Fame — Evidence Sufficient to Support Verdict — Case at Bar. — In the instant case accused was convicted of keeping a house of ill fame. The evidence showed that the premises used was the upper flat of a building of which a third party appeared to have been the lessee; that accused and his wife had come from West Virginia to this house, where accused's wife followed her vocation up to the moment of the raid during which accused was arrested, and that accused had lived in the house until the time of his arrest. Accused contended that he had followed his wife from West Virginia to persuade her to return with him to West Virginia; but in his room was found a drawer packed with freshly laundered shirts, together with the average wardrobe of a man permanently located. The room in which accused lived adjoined one occupied by his wife with a communicating door, bolted and locked on accused's side.

Held: That the evidence was sufficient to support the verdict.

HOLT, J., delivered the opinion of the court.

The defendant was arrested on a warrant charging him with keeping a house of ill fame, etc. He was convicted by the trial justice, fined $200.00 and sentenced to jail for ninety days. He appealed to the Hustings Court of Roanoke. A jury found him guilty and fixed his punishment at a fine of $100.00 together with a nine months' jail sentence. That verdict the court approved, and his case is now before us on a writ of error.

The premises so used is the upper flat of a building on Salem avenue in Roanoke. One Margaret Bono appears to have been the lessee. We shall not stop to discuss the evidence showing the usage to which it was put. That it was used for the purposes indicated in the warrant is plain.

The defendant, Delbert Foster, and his wife, Mabel, lived in West Virginia. About four weeks before the night of the raid, February 16, 1941, she came to Roanoke, entered this house of prostitution and was following her vocation up to the very moment when the police broke in upon her. Her husband followed her in about three weeks, went to the house where she was and lived there until the time of his arrest, which was when the raid was made. He said that his purpose in coming was to persuade his wife to return with him to West Virginia.

In his room was found a drawer packed with shirts, at least eight or ten of them freshly laundered, together with the average wardrobe of a man permanently located. A jury might have believed that his stay was not temporary and that he did not come merely to take his wife away. In short, it might have believed that he misstated his purpose in coming.

The room in which he lived adjoined one occupied by his wife with a communicating door, bolted and locked; but these fastenings were on his side of the door, and to them, of course, he had access.

A jury might have believed that he was a principal or one of them; it might have believed that he was an accessory, and it might have believed that he was an aider or an abettor.

In a misdemeanor like that in judgment this is a matter of no importance. The punishment in each instance is the same. Hitt v. Commonwealth, 131 Va. 752, 109 S.E. 597.

"* * * an accessory is one not present at the commission of the offense, but who in some way concerned therein, either before or after, as contriver, instigator or adviser, or as a receiver or protector of the perpetrator; * * *" Hitt v. Commonwealth, supra.

An aider or abettor is one who is present actively or constructively; he might be a watcher around the corner.

In James v. Commonwealth, 178 Va. 28, 16 S.E.2d 297, Mr. Justice Hudgins, speaking for the court, said:

[4, 5] "Judge Kelly, in Brown v. Commonwealth, 130 Va. 733, 107 S.E. 809, 810, 16 A.L.R. 1039, quoting Minor's Synopsis Crim. Law, p. 11, says: `A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.* * * Every person who is present at the commission of a trespass, encouraging or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means, countenances or approves the same is, in law, assumed to be an aider and abettor, and is liable as principal.'"

The status of the accused may be established both by circumstantial evidence and by direct evidence. Shiflett v. Commonwealth, 151 Va. 556, 145 S.E. 336. The court there said:

[6, 7] "In Brown v. Commonwealth, 130 Va. 736, 107 S.E. 810, 16 A.L.R. 1039, the court said: `Mere presence when a crime is committed is, of course, not sufficient to render one guilty as aider or abettor. There must be something to show that the person present and so charged, in some way procured, or incited, or encouraged, the act done by the actual perpetrator. Kemp's Case, 80 Va. 443, 450. But whether a person does in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence.'"

In Triplett v. Commonwealth, 141 Va. 577, 127 S.E. 486, the rule is thus stated:

"To constitute one an aider and abettor, he must be guilty of some overt act, or he must share the criminal intent of the principal or party who commits the crime."

The rule has been generally adopted:

"Notwithstanding these rules as to the nonliability of a passive spectator, it is certain that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same." 1 R.C.L. 141. Cases cited from other States.

The maintenance of these houses is a continuing offense. The defendant knew what the character of this in judgment was when he moved into it in circumstances which indicated he intended to stay for an indefinite time, itself a separate offense. Code, section 4548.

[10, 11] He may have had an interest in it, growing out of the fact that his wife was one of its principal inmates. He must have known that the proceeds of her earnings went in part to the Bono woman and was used in the maintenance of the den at which he was anchored. If he was paying board and room rent, he was contributing to its maintenance, and if he was given these accommodations free of charge, it must have been under a contract, express or implied, that he would keep quiet as to the character of the establishment. Certainly he was interested and certainly these privileges would have been accorded to no complete stranger. Any of the circumstances indicated would support this conviction. Juries are supposed to carry into the jury box ordinary knowledge of men and affairs. Its members do not cease to be men because they are members. They must have remembered also that the defendant did not testify and that no evidence was tendered on his behalf. It is perfectly true that the Commonwealth must make out its case, but that case may be established both by direct evidence and by known and proven conditions.

Judgment affirmed.

Affirmed.

FOSTER v. COMMONWEALTH